No rehearing in contraception case (UPDATED)

Posted Wed, August 14th, 2013 1:15 pm by Lyle Denniston

UPDATED 2:05 p.m. The Third Circuit decision will be challenged in the Supreme Court, according to Matt Bowman, senior legal counsel for the Alliance Defending Freedom, attorneys representing the Pennsylvania company. A press release is here.

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A ruling last month by the Third Circuit Court, rejecting a challenge to the new health care law’s nationwide mandate of birth control health insurance for workers, will stand. By a seven-to-five vote on Wednesday, that court refused to reconsider the case before all of the active judges. Now that there is a split on the issue in federal appeals courts, a question now arises with regard to which case will get to the Supreme Court first.

The Third Circuit’s panel ruling, and a separate decision by the en banc Tenth Circuit Court, came in cases involving profit-making business firms run by religiously devout families who oppose birth control measures as a matter of their faiths. The two appeals courts differ on a key constitutional point: can a profit-making business engage in the practice of religious beliefs? The Third Circuit said no, while the Tenth Circuit said yes.

If, as expected, the issue is taken on to the Supreme Court, it will confront the Justices for the first time with the scope of religious rights — if any — that a business firm may claim, seeking protection under the First Amendment.

More than sixty lawsuits have been filed in federal courts around the country, challenging the so-called contraception mandate written into the Affordable Care Act. Applying to employers with more than fifty employees, the mandate requires health insurance that covers a variety of birth control and reproductive health screening measures. The lawsuits have been pursued on religious grounds both by non-profit colleges and hospitals, as well as by profit-making business firms.

The Obama administration has mounted a vigorous defense of the mandate across the country, and the mandate’s challengers have been equally energetic in seeking to nullify it as a deep intrusion on religious freedom. The administration has written implementing rules that seek to protect some religious institutions, but the exemptions do not go far enough to satisfy some non-profit entities, and are not available at all to profit-making businesses.

The Third Circuit did not issue an opinion with its order denying rehearing by the panel or by the full court. The panel, in its decision July 26, was divided two to one. The dissenting member of the panel, Circuit Judge Kent A. Jordan, would have granted en banc review. Four other judges who were not on the panel also wanted rehearing.

Circuit Judge Robert E. Cowen, who wrote the panel opinion, did not take part in the vote on en banc rehearing, because of his senior status. Only fully active circuit judges may vote on en banc rehearing pleas, but senior judges may take part in panel rulings.

The Third Circuit case is Conestoga Wood Specialties Corp. v. Health and Human Services Secretary et al. (Circuit docket 13-1144). The case involves a Pennsylvania corporation that makes wooden cabinets. All of its stock is owned by the Hahn family, who practice the Mennonite faith.

The company has been represented by a conservative legal advocacy group, Alliance Defending Freedom. That group and its Pennsylvania client will make the decision whether to appeal to the Supreme Court.

The U.S. Solicitor General will be making the decision whether to ask the Supreme Court to review the Tenth Circuit decision. That ruling found that the contraception mandate intruded unconstitutionally on the religious rights of two family-owned Oklahoma corporations — Hobby Lobby, which runs a chain of retail crafts stores, and an affiliated retailer of Christian literature.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.